opened on valencia street and that was an important step for me, i was able to hear the concerns of the neighborhood and thanks in part to that, i've had a great relationship with my neighbors for nearly 9 years. if i were to go through the hearing process and learn that a neighborhood was not supportive, i would no longer be interested in opening there. when one of my fellow merchants had the opportunity to ask jack spade's marketing manager if he would still be interested in opening on 16th street, even if 100% of the residents and merchants were opposed, he was unable to say no, and to me, this goes directly to the heart of why we have the formula retail regulations, measures which to me, kate spade that attempted to evade, they are not invested in the community, they are exclusively focused on what is good for the company and for their shareholders, i

urge you to grant the jurisdiction request so that the community can have a say and we don't allow jack or kate spade to sneak into the neighborhood, i would like to add two points, one is that there are several merchants on 16th street who signed the letter of jurisdiction request, were unable to make it tonight including michael cats who's right across the street and the roxy, several other businesses that have been there for a long time, sf made a non-profit that supports [inaudible] in san francisco has a service helping place locally owned businesses into spaces so if this space becomes available, they will be very enthusiastic to help a merchant go into that space very quickly. >> thank you. >> any other speakers, step forward, please. >> thank you, my name is karen

hoek and i'm the leasing representative for the owner of the building where jack spade has a lease, and i just want to make a correction, i've heard today that -- >> sorry, i'm not sure you're able to speak. the rule is if you have a financial interest in the appeal -- >> i just wanted to make a correction to a statement that was made earlier that the tenant adobe books was -- >> okay, thanks, got it. >> okay, is there any other public comment? i see none. commissioners? >> alright. oh, boy, here we go again. >> can i just ask the city attorney to reiterate the standard for us. robert, could you just restate the standard and what we're

here for? i'm sorry, i have a question for mr. sanchez. i want to be perfectly clear here because something one of the public comments stated confused me and the statement was along the lines was, if the letter of determination -- let's just say hypothetically we grant the request, we have a hearing and we push back the other hearings on the merits of the permits. if in the end after hearing on the merits on the lod we determine that the lod was improperly issued and that was an error on your part, then what are the implications, and would they need to go through -- would those permits that have been issued be undone or

how does that work? >> so, assuming that we would have a hearing on all three items together, if the board found the letter of determination was improperly issued, that jack spade is a formula retail use, i would suggest to you at that hearing you also deny those building permit applications that establish the use and you would allow them to refile within one year if they were to receive a conditional use authorization because if they are formula retail, they need a conditional use authorization for this location. >> one minute there. actually, if the lod is revoked in essence, that does not automatically make it a cu? >> yes, so it's either formula retail or it's not formula retail. >> i was going to say this -- no, you have determined that, alright. the only thing that can determine that -- if your

determination is overruled, the only thing that could determine whether it's a formula retail or not is either revocation of the building permit or a conditional use hearing. >> well, i would say that the board would presumably make findings if the letter of determination is overruled, they would presume that flemings would be made that it is a formula retail use which would then necessitate a conditional use authorization which would authorize the use at that location and would invalidate those building permits because they would have been improperly issued. >> i don't think that's correct. >> i don't follow you, commissioner. could you help me with your thoughts. >> overruling the lod does not automatically trigger a cu process. >> i don't think he's saying it automatically triggers it. >> yes, he does.

he said that if his finding that this is not a formula use is overturned, then the opposite by inference is correct, and i don't think that's correct. >> i think what he was anticipating is that the board would make a basis for the reason for the overturning of the lod and that that -- >> there could be multiple reasons why the lod -- >> might be inner ror. >> i see, okay. >> go ahead. >> so, now i forgot my question. okay, so you said that -- well, first of all, the lod issues based on the conditions at the time that you issue it obviously, so september 12, 2012, at that time, you considered the facts before you and issued it, correct? >> yes, that is correct. >> and you also stated that under the code, you are not able to consider corporate

structure or corporate ownership, correct? >> under the current code, that is correct. there are proposals that would render this a formula retail use, but those proposals are not yet part of the planning code. >> and do we know at what point or at what stage of the process those are? >> they have been introduced, there's 8 or 9 pieces of legislation winding their way through the system, some have been heard from the planning commission already, one change -- they would consider a corporate structure, but that would apply only ournd his golf, and international stores which are not currently included and that would have been citywide, that would have been staff's recommendation, if that were to pass and the board of supervisors passed that, this would be formula use based on that standard because i believe they have stores in london and in tokyo, so they would exceed the threshold and they would be formula retail

use if we considered international stores under the proposed legislation. >> okay, thank you. >> i have a question or two. i think your letter from september 12th lists 7 stores that was referenced to there being 10 now? >> that's correct, they have since that time opened three stores, also since that time, the bore has changed the threshold, so the day after the board decision was issued, i forwarded that to the project sponsor and asked them to respond and say whether or not there are any other locations that have leases because that would now, we would apply that because there's been no decision on this project yet. it's pending, it's on appeal for a hearing next week, this board can consider whatever frats are -- if we find out next wednesday morning that they've opened up an 11th store somewhere? the u.s. which at this time, i do not see that, but if we get that information, i mean, i would recommend that you deny

the permits because it would be a formula retail use, and that's why one of the speakers had stated that it appeared they had 11 stores and we spoke and confirmed that the atlanta store is already in the count, so we didn't see that as an 11th, if that would have been an 11th store, i would have told the board to grant jurisdiction or i would have revoked that letter of determination because of the pending permit, so i want to make that clear, we're awaiting that informationfinger we don't have that information, there are plans of expansion it seems and their filings as been pointed out by the public by the threshold that was set out by the board is a lease and i've asked for that information and they respond ined the negative, they don't have any leases so i don't know how we can consider this formula retail under the current code. >> do you look at financial documents such as the 10k, public filings when you're examining the structure?

>> we would typically look at their websites, try to do research about the number of stores that exist. there's nothing in the code right now that would have us get involved into the corporate structure, that's one of the proposals, if 50% or more of the business is owned by the entity that owns more retail establishes, then we would consider that as formula retail. >> i understand that's pending, not applicable. my last question is could you please repeat your requirements for notice for these lod's. >> so, the planning code does not require any notification for letters of determination, however, we as a matter of policy, we do send it to neighborhood groups that are on the planning department's neighborhood group mailing lists and that's something we've implemented by policy and that was sent to 36 neighborhood groups, on the mailing list for this area, there are 36 neighborhood groups and we would have sent that out last september.

>> and that's voluntary on your part? >> correct. >> so how do we provide the standard of -- i think this is what you were trying to get -- >> causing the delay of the filing because this is in september of 2012 and here we are in august. >> right, but if there's no notice requirement, i don't know how you judge your actions? >> that's correct. >> that's our job. >> this is not an entitlement, we don't see any vested rights, it's a letter of determination, the symbolic importance of this, but it was issued in september, and i would rely on the deputy city attorney, but it would be my opinion that the board would have the ability to find this is a formula retail use establishment next week when it hears the appeals on the building permit. >> we are dealing with the jurisdiction request and not

the other issues, correct? >> correct. this is about a late filing request. >> thank you. >> okay. and since you just stated the standard, i don't think we need to have it read again. the reason why i wanted to ask the city attorney, deputy city attorney to do that is because i think the focus gets lost here. we're here on a late filing jurisdiction request, the question i think -- and i think, you know, some of the public comments and i'm sitting here, some challenging and compelling testimony was presented on both sides of the issue, and i'm sitting here thinking about what our role and what our job is to do today and it relates to whether or not there should have been -- we should allow the late filing of this jurisdiction -- the late filing of this appeal, and i'm trying to think of whether or not in fact the city

inadvertently, certainly i wouldn't find that the city intentionally delayed -- i mean, caused the delay, so that's what i'm thinking about right now, whether it inadvertently caused a delay, and i'm having trouble reaching that conclusion that it did. >> i do, i believe that what we're here for is a little different than what's been heard today and i think that that would be heard next week. i think what we're here today is to determine whether the za was an error in his decision. >> no, we're not, that would be on the merits, what we're here is whether or not they can file this appeal late. i mean, their time for filing expired in i think sometime in november of 2012 and they're late, so the basis of having the opportunity for us to take

jurisdiction over that question if the city inadvertently delayed, was the cause for the delay, caused them to not file their request on appeal until recently, that's -- i think when we get testimony like we heard today, things get conflated and you know we're going to hear next week on the merits, the question of the formula retail. >> so, again, i don't see anything that would allow me to support a late filing. >> i think i agree. i mean, i am certainly -- i certainly want to express my appreciation of everyone coming out tonight and expressing their views and obviously they're very important and i feel very educated in having

heard them, after having heard them, but again, i think the issue here is that there is pending legislation to change the way that the city determines what is a formula retail establishment and that is where i would encourage members of the community to approach your supervisor and encourage your supervisor to clarify how that is determined because i think here, there is a situation where most people know that it may or may not be formula retail if you look at the corporate structure, but the code does not require that the zoning administrator, does not require that the city look at that, so that is the crux of the problem here as to the merits, again, what we're here to look at today is whether the late filing was caused purposely or inadvertently by the city and by that standard, i don't find that it was, so i

would not support the jurisdictional request, although i do look forward to hearing more about the merits of the situation next week. >> okay. >> do we have a motion? >> yeah, i'll move to deny the jurisdiction. >> okay, mr. pa chen koe, if you could call the roll, please. >> we have a motion from the vice-president to deny this jurisdiction request, on that motion, commissioner fung? >> aye. >> president hwang? >> aye. >> commissioner hurtado? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, jurisdiction is denied and no appeal may be filed on this letter of determination. >> okay, we're going to take a

>> welcome back to the august 134, 2013 meeting of the san francisco board of appeal, we are calling item 5c which is a rehearing request, the subject property is at 730 crestline drive, the board received a alerted from kenda macintosh requesting rehearing for appeal number number 13 f 062 t.p.e.n.a. versus dbi, pda, decided july 17, 2013. at that time, the board voted 4-1 commissioner fung dissented, to grant the appeal and overturn the permit on the following preserve and protect the character and stability of the vista francisco development and it will not be an orderly and beneficial in-fill project in the vista francisco

development, 2, the project if approved will result in an inappropriate precedent or expectation for similar in-fill projts elsewhere in the vista francisco development and 3, the board's authority pursuant to article 1 section 26 of the san francisco business and tax regulations code to consider the project's effect on surrounding properties and residents. the appellant is twin peaks east side neighborhood. we will start with the appellants. >> i'm here on bemaf of the project sponsor, i was retained shortly after the last hearing and i'm here to ask that you grant a rehearing request. to begin, i want to emphasize the gravity of the board's revocation of a fully code compliant pronlt that was approved by the planning commission. before my compliant embarked on a four year permitting process that cost 300 thousand dollars,

he sat down with a meeting with the department of public works and talked very specifically about open space restrictions on the property they were told there were none, they then came before this body and had it revoked, regarding open space restrictions, i think it's fair to say the decision to revoke a permit for a fully code compliant project is a bit of a shutter through the development community, it's both extraordinary and manifestly unjust to deny a code compliant project, the decision is made without full development of the facts, with uncertainty or misinformation about the project's compliance with city's laws, the decision to revoke the permit i believe was made under these circumstances. at the last hearing, which i watched online, i was struck by the number of questions posed to city staff which were answered with a qualification like "i'm not 100% certain", or

i believe but can't confirm 100%. to be clear, i'm not faulting city staff for being unable to answer all of your questions on the fly, even for the encyclopedic mr. sanchez, that could be a tough call, the regulations are complicated but i do think the board should have full information and clear answers from city staff before it makes a decision like the one it made. in particular, i'm referring to questions about the proper sequencing of building permit and subdivision applications and bl the project complied with zoning without a lot split. you had a planning department staffing report, the one you based your decision on that stated the property exceeded the property limit unless the lot is split, this is in fact not true, like the board, my client had relied on the expert judgment of planning staff and

wasn't aware of the error at the time of the first hearing. there was also a good deal of disorder regarding ccnr's and how those affected the proposal. we've put the ccnr's into the record, we'd like to brief you more fully on those before you make a final decision. finally, doi think the decision you made had pres d*eshl value or pres d*eshl effect to find 13 other property own necessaries the neighborhood that have similar properties, i think if you're going to make a decision like that, it's incumbent on the board to give them an opportunity to participate. >> thank you. >> counselor, yes, you did provide a ccnr in this brief. when i look at the parcel maps that were included with them,

this particular site is outlined in a dark, heavy line. when i reference back into the ccnr's, and this is an issue that nobody could provide specific information on which was referenced many types was the planning plan as originally intended for this subdivision. what did that dark heavy line for that particular lot represent in the ccnr's? >> i'm not prepared to answer the question. we were retained on this case shortly after your last hearing. it took us a good deal of time to track down the information that we presented. we haven't had time to fully analyze it, but i will point out to you that the planting areas that are discussed in the text of the ccnr's are areas

that are supposed to be maintained by an association. they maintaining the planted areas is a burden on the association, not necessarily a restriction on any individual property and i think there has been an effort to kind of convert one into the other, but again, these are first impressions based on limited exposure to the information and i think that part of the reason that this case deserves a rehearing is because there is a complicated record. the city has given us advice, the dpw gave us advice at the outset that there were no open space restrictions. i think we would like a rehearing so we could come back with the benefit of further information from dpw so you could have advice not from me

as an advocate for my client but from your own staff to really resolve these issues finally. >> okay. >> okay, thank you, we can hear from the appellants. >> good evening, members of the board, iem donald bait man, co-chair of the east side neighborhood alliance, the request files far short of the standards and rierpt that is would warrant a new hearing under the board's rules, by upholding the conditions and the crepts of the vista san francisco subdivision number 1 approved by the board of supervisors in 1962, that caoe aided the open spaces throughout the development and required their maintenance, the board's decision on july 17th does not create any defact toe easement on any party nor does it constitute any regulatory

taking or manifest in judgment, the conditions or crepts of the open green spaces were clearly established not only in the vista francisco subdivision number 1 map following the recommendations at the time of the planning commission as shown on our exhibit a, page 1, but were also set forth in the developer's protected covenants recorded with the city in 196.which is exhibit d with the perp's holder request, both have these open spaces to be maintained nrfr the permit holder has no vested right to develop on the open spaces, only a responsibility to maintain them, thus the board's decision to deny the permit does not take anything away from the owner because he never possessed it. that is the right to construct a building on the open green space, such construction would violate the tenants of both the subdivision number 1 and the

protected covenant, the permit holder asserts there are no facts that have arisen, the protected covenants of 1963, these are not new facts, only ones not brought forward by the permit holder in the original hearing. the recently produced protective covenants support the appellant's position in this matter as it's general planting areas map that mr. fung referenced provides the specific delineation of the open spaces to be maintained, one of which is the open northern section of the property at 70 crestline where subdivision and construction were proposed. lastly, the permit holder has a right with no explanation as to why the covenants weren't offered into evidence on july 17th, that explanation is explicitly required by the board's rules. in conclusion, none of the board's requirements that would warrant a rehearing are found in the permit holder's request,

for the reasons discussed here tonight, as well as other reasons cited in our written response, we respectfully ask the board to deny the request. thank you. >> mr. [inaudible], in your brief, you indicate that -- and you referred it again in your oral testimony just now that the documentation provided by the rehearing requestor -- well, maybe that's too strong a word, showed what was the original planting plan, i believe you referenced that. are you saying that the parcel maps they had which indicates the planning areas is the original planted plan? >> we can state that for certain if we can find the

preliminary planting plan, however our physical inventory of the development which is where we got our mark-ups in our first submission and brief matches what's shown on the map with the covenants, so i think the two support each other and in the absence of the preliminary planting plan, here's the green area, there they are on that map. >> thank you. >> thank you. >> okay, mr. sanchez? >> thank you, scott sanchez, planning department, there was inaccurate testimony in the last hearing, i want to apologize to the board and to the parties because i did misstate facts tat last hearing regarding the density and i think this board knows in my years, i've tried to be accurate and responsive to the questions that i receive from the board, however, i did misstate the density issue at the last hearing, so the subject property the proposal

could be built without a need for a subdivision, the density would allow up to 22 dwelling units on the property i think they're currently at 14, so the subdivision issue is really a secondary matter and again i apologize and i really try to hold myself to a high standard coming before this board, you need accurate information before making your decisions and aapologize to everyone for misstating that, it was something i had reviewed from the staff report and so after receiving the rehearing request, we ran it through the process again and from line staff up to the director, the staff actually, that was an error in communicating in the case support, he knew it was within the density limits and we talked to staff all the way to the director and the change in the staff report would not have changed the planning

department's recommendation, it was made with the construction in the area we believe should have been retained as open space for the development, while i was inaccurate, i apologize and that said, that would not have changed the planning department's recommendation. i don't know if that would have changed the board's determination, i leave that to you, i believe the finding did focus on the construction of the open space, and leading on to that and also the subdivision question, yesterday morning, i received word from bruce stores who's the surveyor for the city and county of san francisco and they were reviewing the subdivision application which was filed for the project and they have made a determination that the original subdivision for the project would not allow construction in this area, that what's called a building setback line that would prohibit that and they would be prepared upon issuance or approval of a subdivision that